Robinson v. Sherwin

Roland, Ch. J. Gibson under whom the defendant claims title, entered into possession of the premises sued for, under a [73] ■written contract to purchase the same of the plaintiff’s intestate. The defendant’s evidence, (upon which the ruling of the county court.was made, and for that purpose must be assumed to be true,) was, that Gibson was to pay one hundred dollars within the first year, and the balance in three equal annual payments, and that he was to have a deed when he paid the. first hundred dollars, Gibson did not pay the whole of the hundred dollars within the first year, nor' until nearly three years after he entered into possession, nor were the subsequent payments made according to the terms of the contract, so that not having fulfilled his contract according to the terms of it, he could not at law have insisted upon a fulfilment of it by the other party. But as the plaintiff did not insist upon the terms of the contract as to time, but accepted the money afterwards, a court of equity would undoubtedly if full payment was made, compela conveyance, and even if it should turn out that the plaintiff was right in claiming there was still a balance due, the defendant would be allowed to have a conveyance by paying it, if the failure to pay was the result of a real misunderstanding of the terms of the contract, and not a designed and wilful refusal to perform it. But when Gibson did pay the first hundred dollars he made no demand for a deed, and evinced no design to claim that the title was in himself, as against the plaintiff, and when he made the subsequent payments they all conceded- the" existence of the original relation between him and the plaintiff, under which he obtained the posr session. • In 1850 Gibson made atender of the amount he claimed .was due on the contract and demanded a deed of the premises. The tender was refused, on the ground that a greater sum was due, and a deed also refused. This very demand of a deed was a distinct concession that the legal title was in the plaintiff, and effectually precludes, the defendant from insisting that Gibson had for years been holding adversely to the plaintiff’s title. Gibson entered into possession under a contract of purchase, which conceded the plaintiff’s title, and his holding was subservient to it, and could never become adverse, until soiue event [74] happened by which that relation was changed from an amicable and fiduciary one, to one of an opposite character. If Gibson had fully performed the contract on his part, so as to entitle himself to a deed by the terms of the contract, the plaintiff would perhaps be bound to take notice that he was claiming title in himself, without being specially notified of it. But in this case he did not perform the contract so as to be legally entitled to a conveyance, and if he did in fact set up a claim of title in himself it could not affect the plaintiff, until distinct knowledge of such adverse claim was brought home to her, and until such notice she had a right to suppose Gibson was holding in submission to her title as he originally entered, and the defendant did not claim any such notice had been given. Ripley v. Yale, 18 Vt. 220 ; Greeno v. Munson et al., 9 Vt. 37 ; Hall v. Dewey, 10 Vt. 593. The county court were clearly right in their ruling that the defendant could not stand upon his claim of adverse possession. The other point made in the court below is not now insisted upon. It is well settled that one tenant in common may recover the whole land in ejectment against one having no title. Chandler v. Spear, 22 Vt. 388 ; Johnson v. Tilden, 5 Vt. 426. Judgment affirmed.